DOMINION OF INDIA Vs. B L BUTT

JUDGEMENT

(1.) The appeal is by the Railway, defendant, through the Dominion of India. The suit was for the recovery of Rs. 6.389-11-0 as damages on account of the loss caused during transit by Railway of two bales out of a consignment of ten bales of woollen goods booked from Amritsar to Dhanbad. Out of the consignment only eight bales were delivered to the plaintiff and it is not denied that the other two were not delivered in spite of the demands made. According to the plaintiff, the short delivery was due to the negligence of the Railway administration, The plaintiff, therefore, after serving the necessary notice under Section 80 of the Code of Civil Procedure, instituted the suit giving rise to this appeal. The claim was challenged on a number of grounds in the trial Court. The trial Court on hearing the parties rejected all the pleas set up in defence and decreed the suit in full.

(2.) In this Court on appeal only three points have been advanced. They are -- (1) that Section 75 of the Railways Act is a bar to the present action; (2) that in any case the defendant is not liable to pay (a) loss of profit calculated at 20 per cent., (b) carting charge, and (c) freight paid for the two bundles; and (3) that the loss was due to the running train theft.

(3.) The case of the Railway is that the articles covered by the two bales not delivered to the plaintiff contained shawls as contemplated by Clause (m) of the Second Schedule to the Indian Railways Act, 1890. That being so, the Railway is not responsible for the loss of those bales as the consignor did not declare their contents as laid down in Section 75 of the Railways Act. Section 75 reads: